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I have an article out today at the Journal of Democracy examining Taiwan's ongoing political stalemate and what I think is best described as a slow-motion constitutional crisis. The key theme: I don't put the whole blame on either the DPP or the KMT-TPP opposition, but rather on the way Taiwan's constitutional framework is designed (or rather, isn't) to handle divided government. I was surprised at how quickly partisan tensions escalated into inter-branch warfare after the 2024 elections, and I have been dismayed at how willing both camps have been to violate norms and push the limits of their institutional prerogatives to gain an advantage. But in hindsight, I probably shouldn't have been.
The fundamental reason is Taiwan is suffering from the classic "dual mandate" problem that Juan Linz first popularized in 1990 in his famous "Perils of Presidentialism" piece for the Journal of Democracy. I don't buy much of Linz's argument -- presidentialism can still be preferable to parliamentarian in some circumstances (see, e.g, Indonesia), and the comparative literature on this question now points to bad design choices within presidential regimes, rather than the presidentialism itself, as creating especially challenging conditions for democratic politics. But I do accept Linz's core contention that presidential regimes create an inherent tension between the executive and legislative branches, and the default pattern of politics is for each branch to be engaged in interminable conflict with the other as long as they are controlled by different parties.
James Madison in Federalist No. 51 famously characterized this conflict as a strength of presidential regimes, or at least separation of powers ones: in his phrase, "ambition must be made to counteract ambition." But for that ambition not to escalate into political warfare that ultimately destroys democracy, there has to be another branch sufficiently strong and independent to play referee and regulate the conflict. Put differently, a key constitutional design principle is that in presidential regimes, you need well-protected neutral arbiters—the judiciary, prosecutors, ombudsmen, state regulators, and above all the constitutional court—who can limit partisan conflict and keep it from spinning out of control.
The fragility of these independent institutions is the greatest weakness of Taiwan’s democracy today. As I write in the conclusion to the piece:
After several rounds of constitutional reform, Taiwan is now a strong presidential regime with only two institutions that really matter: the presidency and the legislature. Both are directly elected, giving both valid claim to a democratic mandate. When the same party has controlled both branches, partisan incentives have softened the inherent tensions in this design, and Taiwan’s policymaking process has functioned reasonably well without the need for other institutions to intervene. But with control now divided, interbranch conflict has emerged with a vengeance. Many of Taiwan’s policymaking processes have ground to a halt, and in seeking to limit the fallout from this partisan conflict, its accountability institutions have themselves become prime targets.
This piece, by the way, is the more developed version of a talk I gave at an event hosted by the Shih Ming-te Foundation in Taipei on September 9, which got picked up by a few media outlets in Taiwan, and then twisted a bit for partisan ends for a couple news cycles. For those looking for the full context of my comments, which have plenty of criticism of both political camps (e.g. the TPP-KMT retaliation against the Constitutional Court is appalling, and the DPP premier's refusal to countersign legislation is almost certainly unconstitutional), check out the article at the link.
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Register here to attend this virtual talk.
Professor Lin’s book explores the challenges which faced the United States and Taiwanese alliance during the Cold War, addressing a wide range of events and influences of the period between the 1950s and 1970s. Tackling seven main topics to outline the fluctuations of the U.S.–Taiwan relationship, this volume highlights the impact of the mainland counteroffensive, the offshore islands, Tibet, Taiwan’s secret operations in Asia, Taiwan’s Soviet and nuclear gambits, Chinese representation in the United Nations, and the Vietnam War. Utilizing multinational archival research, particularly the newly available materials from Taiwan and the United States, it reevaluates Taiwan’s foreign policy during the Cold War, revealing a pragmatic and opportunistic foreign policy disguised in nationalistic rhetoric.
Hsiao-ting Lin is a research fellow and curator of the Modern China and Taiwan collection at the Hoover Institution, for which he collects material on China and Taiwan, as well as China-related materials in other East Asian countries. He holds a BA in political science from National Taiwan University (1994) and an MA in international law and diplomacy from National Chengchi University in Taiwan (1997). He received his DPhil in oriental studies in 2003 from the University of Oxford. He has published extensively on modern Chinese and Taiwanese politics, history, and ethnic minorities, including Accidental State: Chiang Kai-shek, the United States, and the Making of Taiwan (2016); Modern China’s Ethnic Frontiers: A Journey to the West (2011); and Tibet and Nationalist China’s Frontier: Intrigues and Ethnopolitics, 1928–49 (2006).
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The editors are all major figures in their own right. Jerome Cohen is legendary for taking up the study of Chinese legal systems during the 1950s and 60s, when nobody else thought there was much point to it, and he was a professor to both Annette Lu and Ma Ying-jeou at Harvard in the 1970s. His opening chapter recounts some of his personal history pushing back against Taiwan's martial-law-era criminal justice system, and there are some eye-opening anecdotes in there. I did not know, for instance, that Cohen was instrumental in bringing a civil lawsuit in a Taiwanese court against the the killers of Henry Liu, and that he worked with future Kaohsiung mayor and DPP presidential candidate Frank Hsieh 謝長廷 to bring pressure on the KMT regime through its own court system.
William Alford and Chang-fa Lo are no slouches, either; Alford is a vice dean and director of East Asian Legal Studies at Harvard. Chang-fa Lo 羅昌發 was Dean of National Taiwan University Law School and served as a justice of the ROC Council of Grand Justices, Taiwan's constitutional court, from 2011-2019 (as a Ma Ying-jeou appointee). In 2020 he was appointed Taiwan's representative to the World Trade Organization by Tsai Ing-wen. So during his years of public service he has managed to receive support from both the blue and green camps.
Between them, they have assembled an extremely impressive group of legal scholars and practitioners to contribute 37 chapters on many aspects of human rights law in Taiwan. The authors are also a welcome mix of Taiwan- and overseas-based experts. This kind of international, English-language collaboration is hard to pull off, but the payoff comes from having Taiwanese voices featured prominently throughout the volume and a truly original set of sources and scholarship on this topic.
First, because of its diplomatic isolation, Taiwan isn't party to the key UN human rights conventions and treaties, but despite (because?) of that isolation, international law has been especially influential in the transformation of the human rights regime. For instance, in 2009 (when the KMT was the ruling party), the Legislative Yuan adopted into domestic law the two major human rights covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and empowered Taiwan's courts to nullify other legal statutes inconsistent with provisions in the two treaties. Several chapters also focus on the efforts to turn the Control Yuan into a human rights commission or ombudsman that would give it a role more in line with international practices in other liberal democracies.
Second, Taiwan's legal system still rests on the foundations of the 1947 Republic of China constitution. In a rather odd twist, the protections for human rights enshrined there were actually quite advanced for its time, and that has helped to strengthen civil liberties in the democratic era. In particular, the survival of the ROC constitutional framework gave the constitutional court an outsized role in shaping the pace and direction of human rights reforms: in the 1990s, the court began to breathe life into constitutional aspirations that went mostly unfulfilled during the pre-democratic era and set legal practices and protections on a more liberal trajectory.
Third, Taiwan's current legal system is a remarkable mix of at least three very different traditions: Chinese Confucianism; European continental law (much of that itself first refracted through Japanese practice before coming to the ROC, or directly to Taiwan during colonial rule); and Anglo-American practices, most notably in the applications of US First Amendment jurisprudence to libel and free-speech cases. It is a truly unique concoction of influences, and as a result it is fascinating to watch debates over legal reforms play out there now.
I came away from this book convinced that in addition to the economic and political "miracles" that get most of the attention in scholarship on Taiwan's ROC-era transformation, there is also a human rights miracle that deserves separate consideration. Taiwan and Human Rights will be an important reference for anyone interested in Taiwan's evolution from a serial violator of human rights to one of its most enthusiastic proponents.
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Szu-yin Ho, Professor of Strategic and International Affairs at Tamkang University, Danshui, Taiwan, and the former deputy secretary-general of the National Security Council during the Ma Ying-jeou presidency. He'll be speaking about the legacies of President Ma's cross-Strait policies.
Austin Horng-en Wang, Assistant Professor of Political Science at UNLV. He'll provide some remarks about the emergence of Tsai Ing-wen as the unquestioned leader of the DPP during the Ma era.
Shih-hao Huang, Post-Doctoral Fellow in political science at National Chengchi University, Taipei, Taiwan. He'll present data that show the challenges the Ma administration had getting priority legislation approved by the Taiwan's Legislative Yuan, despite enjoying a large KMT majority there for both his terms. He will also compare legislative success rates under Ma to the Tsai Ing-wen era, and reflect a bit on what the differences can tell us about executive-legislative relations in Taiwan.
For more on the book, and a link to the first chapter, see this previous blog post.
This will be the last event of the calendar year for PTIP. Keep an eye out for announcements about our 2021 activities, coming soon.
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This is our attempt at a deep dive into various aspects of Ma-era politics, including party politics and elections, political institutions and governance challenges, trends in public opinion and democratic values, civil society and social movements, and cross-Strait and US-Taiwan-PRC relations. This look at the Ma years parallels somewhat our earlier book on the Chen Shui-bian era.
We were fortunate to be able to assemble a great group of contributors for this book--about half based in Taiwan and half abroad--who offer a variety of perspectives on the politics of the Ma years. The scholarship here draws on years of conferences, papers, and conversations that started even before President Ma left office, including with some of the key participants in and outside of the Ma administration. (Chapter 15, for instance, is by Szu-yin Ho, who served for two years as deputy Secretary-General of Ma's National Security Council.) This sort of cross-national collaboration is less common than it should be (in part because it's logistically hard to pull off!), but I am convinced the final product is much stronger for it.
Among the many great contributions here, let me especially highlight three that provide original, provocative answers to important questions about the Ma era:
- In Chapter 3, Austin Wang explains how Tsai Ing-wen emerged from obscurity as unrivaled leader of the DPP during its years in opposition, despite having never previously held elected office;
- In Chapter 4, Nathan Batto shows how President Ma's recurrent troubles with the legislature had more to do with deep divides within the ruling KMT than they did with the obstructionist tactics of the opposition DPP and with Ma's party rival, Speaker Wang Jin-pyng;
- In Chapter 7, Isaac Shih-hao Huang and Shing-yuan Sheng demonstrate that having a majority in the Legislative Yuan does not mean a party has complete control over the Legislative Yuan, and that the legislature's decentralized law-making process makes it challenging for the executive branch to get high-priority legislation approved, whether or not the president's party holds a majority.
For more thoughts on those issues and a broader overview of the book, check out the introductory chapter, which is available ungated from the publisher's website.
- The Dynamics of Democracy During the Ma Ying-jeou Years, by Kharis Templeman, Yun-han Chu, and Larry Diamond
- The 2012 Elections, by Shelley Rigger
- The DPP in Opposition, by Austin Horng-en Wang
- The KMT in Power, by Nathan F. Batto
- The Party System Before and After the 2016 Elections, by Kharis Templeman
- The Challenges of Governance, by Yun-han Chu and Yu-tzung Chang
- Legislative Politics, by Isaac Shih-hao Huang and Shing-yuan Sheng
- Watchdog Institutions, by Christian Göbel
- Managing the Economy, by Pei-shan Lee
- Assessing Support for Democracy, by Yu-tzung Chang and Yun-han Chu
- Trends in Public Opinion, by Ching-hsin Yu
- The Impact of Social Movements, by Dafydd Fell
- Who are the Protestors? Why Are They Protesting? by Min-hua Huang and Mark Weatherall
- Social Media and Cyber-Mobilization, by Eric Yu and Jia-hsin Yu
- Cross-Strait Relations, by Szu-yin Ho
- In the Shadow of Great-Power Rivalry, by Dean P. Chen
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In the article, I lay out several reasons why these fears did not come to pass in 2020, and why Taiwan's democracy has repeatedly proven resilient to PRC pressure campaigns.
- The CCP is still pretty bad at influencing public opinion: Beijing's covert influence operations have been surprisingly clumsy, badly disguised, and at odds with the long-term goals of Taiwan policy under Xi Jinping.
- Partisanship can be a good thing: The high salience of the China factor and Taiwan's partisan divides make it hard to execute the kind of United Front-led, covert and coercive activities that the CCP favors for most of its influence operations elsewhere in the world.
- State capacity lives: The Taiwanese state is still quite capable of responding effectively to the threat of foreign interference in elections when it takes them seriously, and the 2018 elections provided a belated wake-up call to this danger.
- A free society helps: Taiwanese civil society, including parts of the media and NGOs, as well as private social media companies, managed to mitigate the impact of disinformation. Facebook, for instance, took down over a hundred Han Kuo-yu fan pages the month before the election for "inauthentic activity."
- Low-tech elections are an important backstop for democracy: Taiwan's election management system is very low-tech, but it is also transparent, accurate, efficient, fast, and fair. (For more details, see here.) Nobody disputed the election results, shocking as they were to some of Han Kuo-yu's core supporters who had believed the polls were fake and that Tsai would lose. The high trust in the voting and counting process had a lot to do with that.
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Somehow, Chen Shui-bian’s second term was even worse. The controversy around his re-election victory in 2004 robbed him of whatever political momentum he might have enjoyed, and he spent most of his remaining tenure fending off vicious partisan attacks, anti-corruption accusations in the press, massive street rallies by his opponents, and impeachment attempts in the legislature. In his attempt to keep core pro-independence supporters on his side, President Chen pursued a brash symbolic agenda that deliberately provoked the pan-Blue opposition, infuriated Beijing, alienated even potential allies in Washington, and left him politically isolated. In the 2008 elections, his Democratic Progressive Party (DPP) paid a steep electoral price, and after his term was finally over, Chen ended up in handcuffs: the corruption accusations turned out to be true, and he was sentenced to a long prison term.
The rest of this piece continues at Taiwan Insight.
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Yet the inclusion of the Pingpuzu was a radical act—arguably the boldest aspect of the whole event. Every preceding government of Taiwan had refused to acknowledge Pingpuzuactivists’ claims to indigeneity. By explicitly mentioning them in her apology, President Tsai gave legitimacy to the idea that Taiwan’s “true” indigenous population — officially only about 530,000, or 2.3% of the total — is significantly larger than recognized."
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Last week, the Taiwan Citizen Union (公民組合) announced that it would register as a political party and field candidates in the 2016 legislative elections. Its stated agenda is political reform, beginning with the electoral system. That’s the right place to start, because as currently constituted, Taiwan’s electoral rules make it nearly impossible for small political parties to win more than a couple of the legislature’s 113 seats. Unless the electoral system is changed, the TCU, like hundreds of parties before it, is probably destined to end up as a historical footnote...